Is there a consensus on whether disability leave it should be paid?

Seamus McGranaghan

O'Reilly Stewart Solicitors

In relation to disability leave, is there a consensus on whether it should be paid?

Scott: That presumably is people who are disabled, they take more time off. Is there a requirement to be paid?

Seamus: You would imagine during circumstances where they have put in leave specifically because of their disability. Maybe they are and having to undertake certain things or take certain steps. In general, my view in relation to that is that whether it is a disability leave period request that it is unpaid. We're looking at it across the board and we're assuming the employer has taken the reasonable adjustments and steps to facilitate the employee already. Certainly, where the employer has taken those steps and the reasonable adjustments have been made and there's still further leave that is required at that point, maybe my view that it shouldn't be paid. It's, of course, open to the employer to pay if they wish to pay. My view on that is that it should be a consistent approach and there shouldn't be one rule for one and one rule for another because it could just lead to problems and possible claims.

But if the idea that the business is there with employees and they're there to work, you're trying to incentivise them as well, if you start to pay people for long periods of leave that they're off, there would be no incentive to get them back into work as well.

Scott: Yeah. Reasonable accommodation or adjustment is about helping somebody do the job itself. It's not about enabling them to take time off. There is a related question that came in again recently. What if a Disability Discrimination Act covered member of staff knows they have a course of treatment coming up. They feel they can't take sick leave fearing a warning for triggering sick absence policy. Should reasonable adjustments be put in place to enable the staff member to receive this treatment? That's specifically saying, "Don't use a procedure to sack me. Allow me time off to get this treatment and I'll be able to come back." That's, to me, is a lot clearer and more useful to the disabled person than saying, "Hey, I'm going to pay you to take time off," because doesn't help them get back to work.

Seamus: Yeah. The idea of the treatment is that they maybe will be offered a period of time of treatment, but it will assess them in returning back to work and possibly returning back to work without further time off as a result of their disability. I have a slight concern around the query in terms of the employee being worried about taking sick leave and triggering something. I think there should always be a full and frank discussion between the two parties, the employer and the employee in relation to the requirements the employee has. It does appear in the circumstances the employer is aware of the disability and is aware of the treatment that's needed.

The reality is there might be an unavoidable period sickness absence. But there should be adjustments certainly to the usual trigger periods in order to facilitate the employee. My other thoughts around that are that there's usually an occupational health report that might have been maintained in advance and that could give a very good explanation to the employer about the type of treatment, the nature of the treatment, and what exactly the employee needs and how the employer can make those facilitations, can make those adjustments, if not in an OH report, possibly within the GP report or sometimes there's a consultant's letter that will set out and explain. That will give food for thought for both the employee and for the employer as to how they can work around this. It may be as well that for somebody off on a period of treatment that, although they might be able to come in to work maybe towards the end their recovery period, they may be fit to work from home and there may be facilitations that can be made again in relation to the employee working from home toward maybe the latter period and then coming back in to work maybe on a phased return building up their return to work in that way.

The employer could also allow the employee to use some of their holidays as well if they were getting at a recovery period towards the end and they felt that a break would facilitate and help in terms of that.

Scott: It's all to do with that. It's about facilitating them back to work. The reasonable adjustment is to help somebody do the job or reach a certain level that's acceptable or get them back quicker. It's not just an add-on.

Seamus: No. And I think the honest position has to be that if you have an employee that has taken treatment in order to really help and assist themselves and helped themselves get back to work, I could imagine that a tribunal will take a dim view of an employer that's penalising an employee to do that.

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